PAWLOVICH v. Linke, No. 23024

• Decision Date: 06 October 2004
• Docket Number: No. 23033., No. 23024
• Citation: 2004 SD 109,688 N.W.2d 218
• Court: South Dakota Supreme Court
• Parties: Sally PAWLOVICH, Plaintiff and Appellant, v. Donna LINKE, Defendant and Appellee.

688 N.W.2d 218

2004 SD 109

Sally PAWLOVICH, Plaintiff and Appellant, v. Donna LINKE, Defendant and Appellee.

Nos. 23024, 23033.

Supreme Court of South Dakota.

Considered on Briefs June 1, 2004.

Decided October 6, 2004.

Stephanie E. Pochop of Johnson, Eklund, Nicholson & Peterson, Gregory, South Dakota, Attorneys for plaintiff and appellant.

Melanie Carpenter of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

FLEMMER, Circuit Judge.

[¶ 1.] Sally Pawlovich (Pawlovich) appeals the trial court's grant of summary judgment holding that Donna Linke (Linke) was protected by the official proceedings privilege in this defamation action. Linke has also filed a notice of review contending the alleged defamatory statement was protected by the common interest privilege. We reverse and remand.

FACTS

[¶ 2.] Pawlovich is a registered nurse and worked in that capacity for the Huron Regional Medical Center (HRMC) in May 2001. Linke had formerly been a nurse at HRMC and was acquainted with Pawlovich. Linke's mother was also a nurse at HRMC and was acquainted with Pawlovich. Linke's sister, T.B., was admitted to HRMC in May 2001 and provided nursing assistance by Pawlovich during at least part of her hospital stay. Pawlovich was aware of the familial relations between the three women.

[¶ 3.] On May 11, 2001, Linke visited T.B. at HRMC. During this visit Linke and Pawlovich spoke. It is the contents of this communication that brought about this defamation suit. Linke's version of the conversation was that she asked Pawlovich how T.B. was doing. She expected a general reply but, instead, the response provided by Pawlovich was that T.B.'s test results showed a gonococcal colonization. Pawlovich also indicated that T.B. did not understand the implications of this sexually transmitted disease. Although T.B. had informed her mother of the diagnosis she asked her not to share it with anyone, including Linke. Linke alleged that before her conversation with Pawlovich she had no knowledge of T.B.'s condition but instead only knew that T.B. had surgery and suffered some type of infection. Pawlovich denies ever having made these statements.

[¶ 4.] Linke subsequently indicated to her mother that Pawlovich informed her that T.B. had been diagnosed with gonorrhea. Her mother conveyed this to T.B. who became upset by the perceived breach of patient confidentiality. Thereafter, T.B. reported this disclosure to Karen Feterl, a hospital administrator and Pawlovich's supervisor. Feterl informed Carolyn Stahl, HRMC's Director of Human Services about the alleged breach of patient confidentiality. HRMC's policy required employees to keep patient information confidential and the penalty for such a violation could include termination.

[¶ 5.] Feterl and Stahl conducted an investigation into the validity of the claim made by T.B. The investigation included talking with Pawlovich, Linke and employees working in the area at the time of the alleged disclosure. Linke also provided a written statement detailing her account of the conversation with Pawlovich. Following their investigation, Feterl and Stahl concluded that Pawlovich had violated patient confidentiality and Pawlovich's employment was terminated.

[¶ 6.] Pawlovich filed this suit against Linke alleging defamation. After the conclusion of the discovery process Linke moved for summary judgment. The trial court, relying upon SDCL 20-11-5(2) (the official proceedings privilege), granted Linke's motion for summary judgment. Pawlovich appeals. The parties have raised the following issues for review:

Whether the statements made by Linke to the hospital personnel during their investigation were privileged under SDCL 20-11-5(2), the official proceedings privilege.

Whether the statements were privileged under SDCL 20-11-5(3), the common interest privilege.

STANDARD OF REVIEW

[¶ 7.] This Court's standard of review for the grant or denial of summary judgment by a trial court is well-established:

Summary judgment is authorized if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). Summary judgment will be affirmed if there exists any basis which would support the trial court's ruling. Wolff v. SD Game, Fish and Parks Dept., 1996 SD 23, ¶ 32, 544 N.W.2d 531, 537 (citing St. Paul Fire & Marine Ins. Co. v. Schilling, 520 N.W.2d 884, 886 (S.D.1994)) (emphasis added).

Cleveland v. BDL Enterprises, Inc., 2003 SD 54, ¶ 11, 663 N.W.2d 212, 216-217.

ANALYSIS

[¶ 8.] In reviewing the trial court's grant of summary judgment in a defamation action we are guided by certain established principles concerning this area of the law. Defamation may be either libel or slander. SDCL 20-11-2. However, both are statutorily defined as an "unprivileged" communication. SDCL 20-11-3; SDCL 20-11-4. Therefore, a defamation action may not survive if the alleged defamatory communication was privileged. Peterson v. City of Mitchell, 499 N.W.2d 911, 915 (S.D.1993) (citing SDCL 20-11-5). In reaching this determination, "[t]he existence of privilege is a question for the Court and therefore is freely reviewable." Sparagon v. Native American Publishers, Inc., 1996 SD 3, ¶ 26, 542 N.W.2d 125, 132.

[¶ 9.] Furthermore, there are two types of privileges contained in SDCL 20-11-5: absolute and conditional. See Flugge v. Wagner, 532 N.W.2d 419, 421 (S.D.1995)

. This statute provides:

A privileged communication is one made:

(1) In the proper discharge of an official duty;

(2) In any legislative or judicial proceeding, or in any other official proceeding authorized by law;

(3) In a communication, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information;

(4) By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.

In the cases provided for in subdivisions (3) and (4) of this section, malice is not inferred from the communication or publication.

SDCL 20-11-5. Subsections (1) and (2) provide for an absolute privilege whether or not the statement is false and regardless of malice. Setliff v. Akins, 2000 SD 124, ¶ 44, 616 N.W.2d 878, 891. Subsections (3) and (4) provide for a conditional privilege and is "`qualified' because the communication is only `privileged' if it is made `without malice.'" Flugge, 532 N.W.2d at 421 (quoting Peterson, 499 N.W.2d at 915). With these principles in mind, we turn to the arguments of the parties.

ISSUE ONE

[¶ 10.] Whether the statements made by Linke to the hospital personnel during their investigation were privileged under SDCL 20-11-5(2), the official proceedings privilege.

[¶ 11.] SDCL 20-11-5(2) provides that "[a] privileged communication is one made ... [i]n any legislative or judicial proceeding, or in any other official proceeding authorized by law." This Court has summarized the effect of SDCL 20-11-5(2):

A privileged communication under SDCL 20-11-5(2) is `absolute and remain[s] privileged whether made with or without malice.' Peterson, 499 N.W.2d at 915. `The defense of absolute privilege or immunity under the law of defamation avoids all liability.' Waln v. Putnam, 86 S.D. 385, 393, 196 N.W.2d 579, 583 (1972). An absolute privilege applies whether the statement is false or not. Id.

Flugge, 532 N.W.2d at 421. For purposes of reviewing the trial court's grant of summary judgment concerning the applicability of this privilege we review the facts in favor of the non-moving party, Pawlovich. Pawlovich maintains that she did not make any statements disclosing T.B.'s condition to Linke. However, the privilege contained in SDCL 20-11-5(2) operates to shield all liability when a false statement is made in an official proceeding, therefore, resolution of the truth or falsity of Linke's statement to HRMC is not determinative under the official proceedings privilege.

[¶ 12.] In determining the applicability of the official proceedings privilege to these facts we note that the investigation by Feterl and Stahl was neither a legislative nor a judicial proceeding. Rather, we must focus solely on the language contained in the second half of SDCL 20-11-5(2) to determine the applicability of this privilege here: "any other official proceeding authorized by law." This Court has determined that "[a]n `official proceeding' is `that which resembles judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings.'" Flugge, 532 N.W.2d at 421 (quoting Waln, 86 S.D. at 393, 196 N.W.2d at 583); see also Blote v. First Federal Sav. & Loan Ass'n of Rapid City, 422 N.W.2d 834, 838 (S.D.1988)

(holding an administrative hearing is an "official proceeding" for purposes of SDCL 20-11-5(2)). In Waln, this Court recognized limitations on the type of proceeding for which the privilege contained in SDCL 20-11-5(2) would apply.

Surely it was not the legislative intent to grant an absolute privilege for every defamatory utterance made in

...